The Concept of Danda in the Dharmasastra

A Unifying View of Spirit and Force of Dharma in Indian Tradition

Sunil Sondhi
Tagore National Fellow
Indira Gandhi National Centre for the Arts

Abstract
Manusmriti, in one of the references to danda, gives specifications for making a
wooden stick for the Upanayan ceremony. This ceremony marks the initiation of a
child’s journey of learning. The danda is to be made of sacred wood of specific length
from trees like Palash, Nyagrodha, or Asvattha, which represent different aspects of
the cosmic order maintained by Brahma, Vishnu and Mahesh. The sacred wood
should not be twisted, it should not have knots or burn marks, should look good and
not cause hurt. The danda as a symbol of discipline is considered necessary for the
pursuit of righteousness, and also for protection from threats to righteousness. The
child carries the danda as he starts the journey of learning with symbolic bhiksa, or
seeking alms, not for himself, but for his teacher. Bhiksha serves to instill in him the
values of humility and self-control and a sense of responsibility towards the teacher
and the society.
The idea of legal culture has had an important place in major recent debates about
the nature and aims of law. The concept of legal culture means that law should be
treated as embedded in the broader culture of society. In a sense, law is culture.
Concept of legal culture encompasses much more than the professional juristic realm.
It refers to a more general consciousness or experience of law that is widely shared
by those who constitute a nation. Culture is fundamental — a kind of lens through
which all aspects of law must be perceived, or a gateway of understanding through
which we must pass so as to have any genuine access to the meaning of law in
society.
Cultural concepts of law that emerge out of the several frames of reference in the
dharmasastra, the republican governments in ancient India, and the constituent
assembly debates enable us to view the law in India in an integrative perspective
that is closer to Indian cultural tradition. The innovative value of historical and
sociological approach lies in its unifying vision of the theological, cultural and
positivist aspects of the concepts of law in Indian tradition.
A holistic concept of law including both ethical and legal perspectives seems to
provide a more realistic picture of Indian legal culture. A juridical system that does
not correspond to the social and cultural sensitivities of a society can not be owned
by the people as their system but will be seen as something foreign and imposed.
Without a conducive social and cultural conceptualization mere formal law cannot
create willing legal and moral obligation.
Introduction
In the context of Indian knowledge tradition, there has been no misunderstanding
more serious in nature than the supposition that Indian culture was fundamentally
'religious', in the sense in which the words 'religion' and 'religious' have been used in
the West for centuries. These imply a belief in one exclusive God as the creator of the
universe, an exclusive book containing the life and the sayings of that messenger of
God, a separate code of commandments, a conclusive corpus of ecclesiastical laws to
regulate thought and behaviour in the light of these, and a hierarchy of priesthood to
supervise that regulation and control and promote proselytization.

The Indian concept of dharma means none of these. It is to this confusion that we can
trace most of the Western misconceptions of Indian society, culture and law. Many of
Indian political and legal institutions continue to be founded upon such
misconceptions which are often the source of the social and political problems that the
people of India face today. The assumptions underlying Western law and
jurisprudence at different stages of its development were radically different from the
assumptions of traditional Indian law and jurisprudence. But it was the Western
political and legal philosophy founded on the rights of the individual that dominated
the constitution-making in India. The divorce of the Indian people from Indian law
jurisprudence has proved harmful for social cohesion in the country.

Dharma means much more than what is commonly understood by religion. While
there is something in the very nature of semitic religion which is divisive, conclusive
and exclusive, dharma is inclusive, open and it unites. Religion excludes all that it is
not in a particular religion, dharma includes every form and view of life. Religion
often makes claims that are not based on experience, the claims of dharma are the
claims of life and science. Religion and politics must necessarily be separated for a safe
and sane world, legal and political thought and practice must necessarily have its basis
in dharma.

Dharma provides comprehensive guidance to regulate human conduct in accordance

with the given system of cosmic creation and fulfill the purpose of one’s life. The whole
life of a person, considered both as a an individual and as a member of social groups,
as well as a person’s relationship with fellow individuals, to the other living beings, to
cosmic reality generally and to one’s conceptions of God come within the purview of
the concept of dharma. Among the duties that it lays down are both self-regarding and
other-regarding, those to the living, those yet to be born and those no longer alive.

As past, present and future are interconnected in Indian tradition, human relations
too extend in time both backward and forward and to the whole environment. In the
cosmic system of creation, large and small, and crucial and trivial are not determined
according to human standards. A particle of sand on the sea shore is no less significant
than the stars and galaxies in the space. So the small details of the yagya are as
important as the details of everyday life, and the public and social relations, from the
point of view of the purview of the dharmasastra.
Nature of Dharma

The first attempt to create a modern scientific theory in jurisprudence was the
positivist theory of the English Jurists Bentham and Austin. Bentham and Austin
utilized the positivist approach of Auguste Comte to the explore subject of
jurisprudence. They insisted that one should study the law, including the legal
structure, the legal concepts etc. as it is, and not how we would like it to be. This was
the scientific approach because in science also we study objective phenomena as it is
and not how we like it to be. For instance, when we study the atoms in physics we
study the nucleus, the electrons orbiting around it, etc. We do not speculate how the
atom should behave according to our own wishes, but we study it as it is. The same
approach was adopted by Austin and Bentham in jurisprudence. (Katju, p. 17).

Positivist jurisprudence regards law as a set of rules (or norms) enforced by the State.
As long as the law is made by the competent authority after following the prescribed
procedure it will be regarded as law, and we are not concerned with its goodness or
badness. We may contrast this with the natural law theory which says that a bad law is
not a law at all. “The science of jurisprudence” Austin says “is concerned with positive
laws, or with laws strictly so called, as considered without regard to their goodness or
badness”. Thus, positivism seeks to exclude value consideration from jurisprudence,
and confines the task of the latter to analysis and systematization of the existing laws.
The separation of law from ethics and religion was a great advance in Europe from the
feudal era. (Menski, p.6).

There has been a general belief among both scholars and laymen that law is a special
mechanism for establishing social order isolated from other social mechanisms and,
for this reason, that the scientific study of law should be confined to the special
capacity of positive legal jurisprudence. While positivism was a great advance over
natural law and was suited to modern industrial society, it had a great defect that it
only studied the form, structure, concepts etc. in a legal system. It was of the view that
study of the social and economic conditions and the historical background which gave
rise to the law was outside the scope of jurisprudence, and belonged to the field of
sociology. (Chiba p.1)

However, unless we see the historical background and social and cultural
circumstances which give rise to a law it is not possible to correctly understand it.
Every law has a certain historical background and it is heavily conditioned by the
social and cultural system prevailing in the country. The flaw in positivism therefore
was that it reduced jurisprudence to a merely descriptive science of a low theoretical
order. There was no attempt by the positivist jurists, like in sociological jurisprudence,
to study the historical and socio-cultural factors which gave rise to the law. Positivism
reduced the jurisprudence to a very narrow and dry subject which was cut-off from the
historical and social realities. Thus it deprived the subject of jurisprudence of flesh and
blood. (Menski, p.12).

The cultural relativism approach that emerged in social sciences in the twentieth

century in the wake of Einstein’s theory of relativity, and the uncertainty principle of
Werner Heisenberg, argues that a society’s beliefs and practices should be understood
based on that society’s own culture. Edward Sapir and Benjamin Whorf, major
proponents of cultural relativism, argue that the norms and values of one culture
should not be evaluated using the norms and values of the other. Another way of
saying this is that many features of human experience are entrenched or embedded in
cultural conceptualizations. Cultural relativism offers both a theoretical and an
analytical framework for investigating cultural conceptualizations that underlie the
social and cultural practices and institutions. At the heart of the theoretical framework
of cultural relativism is the notion of cultural cognition, which affords an integrated
understanding of the notions of “knowledge” and “culture” as they relate to social
practices.

The popular negligence of the cultural factor of law may have been partly caused by
the alleged universal nature of traditional jurisprudence, prevailing as in the western
science of law in the world. Contemporary Western jurisprudence is indeed
established on a universal basis. Its overwhelming prevalence in the world seems to
leave little room either for serious consideration of its cultural specificity or for doubt
as to its applicability to the different cultural specificities of other countries.

Contemporary Western jurisprudence is a product of long Western history and is

coloured by a Western culture based on the Hellenistic and Christian view of man and
society. The universalistic achievements of Western jurisprudence hides its cultural
specificity. That specificity may have been in some cases diffused by or assimilated
into different specificities of different cultures, but in other cases it has conflicted with
or been rejected by them. In all cases, Western jurisprudence, convinced of its illusion
of universality, does not pay due attention to the cultural problems which accompany
such diffusion or conflict between Western specificity and non-Western specificities.
(Chiba, p.2).

The point is that the whole structure of law of a people is not limited to the monistic
system of state law as maintained by Western jurisprudence in accordance with
methodological postulates of legal positivism. The whole structure of law as an aspect
of culture includes all regulations, however apparently different from state law, which
the people concerned observe as law in their cultural tradition, including value
systems. The very cultural identity of a people demands that we include all of them in
a whole structure. Thus, the whole structure of law is plural, consisting of different
systems of law interacting with one another harmoniously or conflictingly. (Chiba, p.4)

At the same time it is true that the peoples and scholars of non-Western countries who
have cherished their own jurisprudence with specificities quite different from the
Western, have not succeeded nor even attempted to present the achievements of their
jurisprudence before the world circle of legal science forcibly enough to cause the
proponents of Western jurisprudence to doubt their conviction of its universality.
Without presenting the achievements of their own jurisprudence before world bodies
specifically aimed at self-reflection of model jurisprudence, they would be disqualified
from criticizing the ethnocentricity of the latter, as recently pointed out by some
Western scholars. (ibid. p.2)
Such a negative or passive attitude may be another reason why Western jurisprudence
has in general disregarded the jurisprudence of different cultures - jurisprudence with
due respect to indigenous legal cultures in non-Western countries. Vital to the proper
understanding of law in non-Western culture is, firstly, for scholars to present their
own data and views positively in order not to negate the significance of western
jurisprudence, but to maintain a sound understanding of its nature when utilized in
different cultures. (ibid.)

Many Western scholars and their Indian followers with their apemanship and
parrotry, vigorously refuse to accept the indigenous identity of law in India, primarily
because their assumptions about ‘law’ differ from the internal categories of dharmic
law. The main problem that arises in connection with understanding dharmic law, has
been the regular attempt – by insiders as well as outsiders - to deny that this
important legal system actually has its own capacity for internal modernisation.
Dharmic law is much more than state law and thus it explicitly rejects the usefulness
of legal positivism as an analytical tool for understanding the actual complexity of
dharmic law. The projected decline and virtual abolition of dharmic law is nothing
but a constructed myth that has served certain purposes and modernist agenda – and
continues to do so with much persuasion - but can not defeat the social, cultural and
legal realities of over a billion Indians in India.

The assertion that law is simply the law of the sovereign State misses the point that the
law gets its meaning from the intersection of legal and various other social systems of
meaning. Law like any other institution of society is interconnected with other
institutions. The task of legal scholars therefore, is to recognise the connections
between the law and social, political and cultural systems. The interdisciplinary study
of law must mean that it brings the knowledge of the legal doctrine and analyzes it in
the context of the knowledge of other disciplines. In doing so it carries the
responsibility to try and achieve social justice for all. Despite the never-ending debates
about modernisation and secularism in India, dharmic law, governing the social
majorities of India’s population, has continued to play a key role in the development of
the state legal apparatus and will continue to do so. It does not matter whether
scholars like this or not.

Dharma, the foundation upon which all life is based in India, is immeasurably more
than 'religion'; mistakenly one has been taken to be the other. The Indian mind did not
think in terms of contesting polarities of the either/or kind. It would be yet another
misunderstanding if the statement that dharma is profoundly secular is taken to mean
that it is for that reason anti-religion, or that it has concern with other human
beings in the form of legal accountability alone. The secular nature of dharma lies in
the fact that all Indian explanations of man are evidently located in man himself, in
the very structure of his being. It is that which binds one human being with another.
The ethical foundations, and the limits of one human being's conduct towards
another, are already inherent in man's being, in the force of dharma.

In modern times, when secularism is upheld as an ideal and religion has been
separated from politics such a linkage may appear far-fetched. The Indian view is
different. Morality, to have effective force in practice must be based on rules of cosmic
order. The unruly conditions of the modern world could have been avoided if dharmic
values had been upheld, and personal, social and national behavior had been
harmonized with the complex adaptive system running through the history of cosmic
creation. Dharma can be comprehended by its application in daily life, by the
consideration of the diverse form it takes, by its effects both visible and invisible, the
empirical evidence behind it, and and the occasion for its use and or application.
Dharma stands for natural law, civil and moral law, justice, virtue, merit, duty,
morality and quality. (Aiyangar, p.62).

The study of dharmic law has been neglected in the decades since independence due
to a combination of declining knowledge of its classical foundations and the pressures
of modern political correctness, to the effect that studying dharmic law is often seen as
a regressive activity. Anything ‘Indian’ is therefore quickly dismissed in many ways, by
those who imagine and assert that a modern world, by which is often meant a
Western-inspired world, can do without so-called primitive religious and cultural
traditions. They have conveniently forgotten that the so-called modern western
traditions have their own roots in Western cultural and religious traditions. So how
can India be called upon to ‘modernise’, if that means giving up the social and cultural
concepts that make up the fabric of the Indian identity?

Since dharmic law has always been a reflection of the way of life of millions of very
diverse people, what was abolished by the formal law was manifestly only a fragment
of the entire field and of the social reality of dharmic law. The conceptual framework
and the entire customary social structure of Indian culture, remained largely immune
to the powerful wonder-drug of legal modernisation which had been administered in
measured doses since well before 1947 and was again used during the 1950s and
decades thereafter. Something as complex as Hindu personal law could not be
reformed away and ultimately abolished by statute, nor could its influence as a legal
normative order that permeates the entire socio-legal Indian field simply be legislated
away. Dharmic law has always been a people’s law, whether or not the state wished to
see it that way. Despite enormous internal changes, dharmic law as a conceptual entity
has remained an integral part of the living and lived experience of all Indians.

Spirit of Dharma

The Vedic texts give a reasonably clear picture of the world views of the Vedic sages, of
their ideas about man’s place in the world, in particular of the Vedic conceptualization
of ṛta as macrocosmic order. Herein, then, lies the importance of the Vedas as a source
of ‘law’ or rather of dharma. They elucidate the early conceptual underpinnings of
Vedic law which are absolutely central for understanding the emerging legal system as
a whole. The central point appears to be that ‘law’ is an entity beyond direct human
control. It exists, and yet does not claim institutional loyalty, as a state legal system
would do.

Vedic sages and scholars realized the overarching presence of rta, an invisible cosmic
law that held together in order a complex and adaptive system at different levels,
forms, and phases of all the objects and processes that comprised the cosmos. All the
forms of being existing and developing in harmony within an interconnected web of
relationships were seen as organized in a system which integrated all the parts into an
undivided whole in flowing movement. The cosmic order which extended to all levels
of existence from the infinite to the infinitesimal was seen as inviolable, never to be
broken, even by the Vedic divinities who were in fact considered as the guardians of
ṛ t a. (Menski, p.90).

This universal principle of creative order is revealed in some of the earliest stages in
the evolution of multi-cellular life on this planet. A multitude of cells are bound
together into a larger unit, not through aggregation, but through a marvelous quality
of complex inter-relationship maintaining a perfect co-ordination of functions. The
larger co-operative unit accommodates greater freedom of self-expression of
individual units, to develop greater power and efficiency in the organised whole. It is
not merely an aggregation, but an integrative inter-relationship, complex in character,
with differences within of forms and function. There are gaps between the units, but
they do not stop the binding force that permeates the whole or the dynamic identity of
the units. The most perfect inward expression of such organization has been attained
by man in his own body. But what is most important of all is the fact that man has also
attained its realization in a more subtle body outside his physical system in the
universe. (Tagore, 1931, p.2).

Īśa Upaniṣad brings out the systemic aspect of cosmic order most succinctly and
clearly. It says that the Absolute Reality is both universal and particular. The creation
of the particular from the universal does not affect the integrity of the universal. The
principle or quality of wholeness and integration is prior to the principle of particular
and diversity. Oneness becomes many in the image of the oneness. That is whole, this
is whole, taking out a particular whole from the absolute whole leaves the absolute
whole integrated and creative as before. Every particular entity has to be an integrated
whole to maintain its identity amongst an integrated system of infinite entities. The
wholeness or integrity of each part is the bedrock of the wholeness of the universe and
the order of the cosmos, and the order of the cosmos is the bedrock of the wholeness of
the particular.

Ṛ ta is the principle whereby the Absolute Reality becomes manifest and perceptible to
human senses. In Ṛg Veda it is said that, 'heaven and earth exist in close unison in the
womb of ṛ t a'. (Ṛg Veda, 10.65). Ṛ ta , thus, is the one single system that embraces the
cosmic order. The concept of ṛ t a explains the course of the evolution and sustenance
of the natural and human world in terms of rhythm, time cycle, seasons, and biological
growth. It refers to three basic elements of birth, growth, and transformation as the
components of the complex cosmic system which functions according to its own self-
organizing principles and law. Scholars, scientists, and poets in all ages have always
found it amazing that the Absolute Reality is so well-ordered. In a landmark Supreme
Court judgement, Chief Justice P. B. Gajendragadkar called this ‘great world rhythm’
one of the basic concepts of Hindu philosophy. (1966 SCR (3) 242).
The early key concept of ṛta metamorphosed gradually into dharma which may be
understood as microcosmic order or duty, the central dharmic legal term, which in
one form or another underlies and suffuses all the later texts. Dharma became clearly
the core concept of Vedic tradition, and thus of Vedic law. Its relevance in legal terms
can be explained quite simply in that life is seen as a complex experiential reality, in
which everybody and everything has a role to play and is visibly and invisibly
interconnected in a giant systemic network of cosmic dimensions, a kind of universal
spider’s web. Individual roles and obligations are, of necessity, quite disparate for
different people; they depend on contextual factors like gender, age, or place in
society. Dharma as a central legal concept thus suggests unlimited plurality at the
level of social reality within a dharmic systems theory that defies rational
deconstruction.

Ṛ ta is a multidimensional concept which is connected to other fundamental concepts

like brahma, atma, dharma, and satya,in the Veda, Epics, Upani ṣ ads and the
Dharmaśāstra. In its most fundamental sense, ṛ t a is the law, order, system, harmony
underlying all natural phenomena. Ṛ ta is the all-pervasive universal order that is same
at all levels of existence, and the objective world is the expression of that order. The
field of ṛ t a is physical, mental, spiritual, and ethical. Nature as it is known to us is not
seen as a chaotic occurrence of events and objects. While it may appear as random and
disorganized, the fundamental processes of nature that underlie all objective, and
subjective realms too, function as a complex system in which all parts are coordinated
and integrated into a larger whole.

Indian conceptualizations of ṛ t a, dharma, and satya are not comparable with

Western principles in the sense that they provide specific ethical permissions or
prohibitions. Truth in the Western sense is the sum of what can be isolated and
counted, it is what can be logically accounted or what can be proved to have happened,
or what one really means at the moment when one speaks. While the Indian
conception of satya is marked by an inner realization of the wholeness of reality, the
Western view of truth is better described in English dictionaries as truthfulness or
veracity of individual explicit statement.

In Indian tradition, on the other hand, truth is defined in Mahābhārata when it says,
'Satya is dharma, tapas (austerity) and yoga. Satya is eternal brahma, Satya is also
the foremost yagya, and everything is established on Satya', (Mahabharata, V, p.497).
In an illustration of this principle, Mahābhārata says that the spirit of dharma
exists in the khadga (sword) also. The khadga or sword is a creation of Brahma for
the purpose of protection and sustenance of the people according the principles of
dharma. It takes the form of verbal, material, physical or death penalty for those who
consciously violate the principles of dharma for their own selfish ends. (ibid. p. 512).

The concepts of rta and dharma are of great significance in the ethical and legal
tradition of the Vedas. It is the anticipation of the law of karma, one of the
distinguishing characteristics of Indian legal thought. It is the law which pervades the
whole world, which all gods and men must obey. If there is law in the world, it must
work itself out. If by any chance its effects are not revealed here on earth, they must be
brought to fruition elsewhere. Where law is recognized, disorder and injustice arc only
provisional and partial. The triumph of the wicked is not absolute. The shipwreck of
the good need not cause despair. (Radhakrishnan, p.80).

The ideal is envisaged as a fluid ordered universe, or a complex adaptive system, in

macrocosmic as well as microcosmic dimensions, in which every element of that giant
cosmic order simply does what is most appropriate. In other words, the Vedic
conceptualization of order reflects a kind of ecologically sound symbiosis in which
every component part plays its proper role. But this is merely the conceptual ideal: real
life is a never-ending chain of contradictions, role conflicts, and processes to ascertain
specific duties. It can also be viewed as a struggle to find one’s path, especially later in
the more individualistic contexts of realization-centred beliefs.

More pointedly for a legal analysis, awareness of ṛta and dharma involved a
continuous process of harmonizing individual expectations with concern for the
common good, a constant obligation to ascertain the appropriate balance between
individual and society, good and bad, right and wrong, the permissible and the
prohibited. Vedic law, in other words, is from the start based on a complex and
continuous interactive process (Derrett, 1968, p.2–3). Much of this remains invisible
and internalized, a truth later brought out forcefully in the dramatic illustrations of the
great epics, which can be seen as ancient tools for teaching ‘order’ in every sense of the
word.

Rule of Dharma

To the question whether there was a rule of law prevalent in ancient India, evidence
for a resoundingly affirmative answer is borne out by the great epic texts. The message
of these texts is clear that the King was not above the law. Sovereignty was based on
an implied social compact and if the King violated this traditional pact, he forfeited his
kingship. It refutes the view that the kings in ancient India were despots who could do
as they pleased without any regard for the law or the rights of their subjects. Coming to
the historical times of the Mauryan Empire, Kautilya described the duties of a king the
Arthasastra in the following terms, “In the happiness of his subjects lies the King’s
happiness; in their welfare his welfare; whatever pleases him he shall not consider as
goof, but whatever pleases his people, he shall consider as good.”’ (Nazeer, p.7)
One of the most distinguishing aspects as between the concept of the law as defined in
the Western jurisprudence and that as defined in Dharmasastras is that whereas the
imperative command of the king constituted the law according to the former, under
the concept of dharma, the law was a command even to the king and was superior to
the king. This meaning is brought out by the expression 'the law is the king of kings'.
The doctrine 'the king can do no wrong' was never accepted in ancient Indian
constitutional system. Tirukkular , says that a king is assured of heavenly status if he
makes the wrongdoer feel the weight of falling sengol, provided the light of justice is
hidden in that blow of sengol. (Tirukkular, 57).
Another aspect discernible from the definition of 'law' given in the Brihadarayaka,
Upanishad and accepted in the Dharmasastras is that the law and the king derive
their strength and vitality from each other. It was impressed that the king remained
powerful if he observed the law and the efficacy of the law also depended on the
manner in which the king functioned, because it was he who was responsible for its
enforcement. There was also a specific provision which made it clear to the king that if
he was to be respected by the people, he was bound to act in accordance with the law.

Thus the first and foremost duty of the king as laid down under dharmasastra was to
rule his kingdom in accordance with the dharmic law, so that the law reigned supreme
and could control all human actions so as to keep them within the bounds of the law.
Though dharma was made enforceable by the political sovereign -the king, it was
considered and recognised as superior to and binding on the sovereign himself. Thus
under Indian ancient constitutional law (Rajadharma) kings were given the position
of the penultimate authority functioning within the four corners of Dharma, the
ultimate authority. Rules of dharma were not alterable according to the whims and
fancies of the king. The exercise of political power in conformity with "dharma" was
considered most essential. This principle holds good for every system of government
and is a guarantee not only against abuse of political power with selfish motives and
out of greed but also against arbitrary exercise of political power.

The most rigid enforcement of obligations and duties form, side by side with the most
lavish grant of rights and privileges to, both the governor and the governed explain the
seeming inconsistency and paradox that characterise the dharmasastra, and the great
complementarity between the theoretically despotic and the practically democratic
features of the political organisation. This is a sound political maxim and is based on
the observation of the fact that the peoples’ interests and opinions do in most cases
differ, and insightful decision making is required at the political. Random scattering of
the public opinion requires mediation and guidance from the government. (Sarkar,
Sukraniti, p.51).

In deciding upon measures the king should be guided by the truth ‘voice of people is
voice of god’. Thus though the king is himself a god, the god of the king is the people.
The king has been described in Dharmasastra as their servant getting remuneration
for his work. The peculiar dualism and intergration in the king’s position have been
very unhesitatingly indicated in the Sukraniti. (ibid.). The king is a god no doubt, but
Dharmasastra do not consider him infallible. The limitations are fully recognised, and
moral as well as constitutional restrictions are imposed upon him as upon other men.

The Theory of the Divine Right of Monarchs has therefore to be understood with great
modifications and the Western notions of about the infallibility and divinity of Kings
and Popes must not be transplanted into the study of Indian Socio-political
institutions. (Sukraniti, p.54). The theory that a man may be omniscient is rejected
altogether in the Dharmasastra for the very nature of the case goes against the idea.
To the argument of physical magnitude, extensity and vastness of political interests is
added that of intellectual limitations and incapability of man. Man cannot be
omnipresent, he cannot also be omniscient, and therefore he must never be made
omnipotent. (Sukraniti, p.56).

The true character of Indian jurisprudence is therefore different from that of the
Anglo-American system. The obedience to the Shruti and Smriti etc., was not due to
any political authority of their authors, but the veneration in which they were held by
those for whom these writings were intended. These lawgivers showed admirable
practical good sense in prescribing rules. While apparently professing to follow the
Divine Laws and Commands as found in the Vedas and claiming simply to interpret
and explain them to the general public, in reality the Dharmasastra so moulded these
texts as to bring them in conformity with the general sense of their followers—a fact
which secured them a following and obedience which was as universal and strong- as
that secured by a political authority.

It has also to be understood well that the area of the jurisdiction of central power in
ancient India was limited by the wide autonomy of the local bodies, of village and town
governments, and of autonomous, economic, religious and military organizations.
Their consent in the rules of dharma, which touched them also, had to be taken into
account by any ruler. The idea that the central power was the monistic sovereign did
not reflect the reality of social life in India. In the life of the common man, the direct
impact of the central power in the country or region was not significant. Society was
constituted of many social groups which were voluntary, hereditary, functional and
provisional with several groups performing multiple functions. The legitimacy and
authority of all these social groups was derived from the same source of dharma.

The economic and social support of the central power came from the allegiance and
cooperation of these diverse social groups which were fairly autonomous in their day
to day functioning. They followed their own dharma which was usually in consonance
with the dharmic law of the land. Thus the central political organisation was not not
omnipotent or omnipresent like the fictional sovereign of the legal positivism. It was
only one of the many governing social and religious organizations, often the primary,
but not one that touched the lives of people deeper than the others. Dharmic law was
essentially a pluralist law which included and transcended the formal command of the
political sovereign. (Aiyangar, p.179)

As a holistic legal system Indian jurisprudence emphasized and intrumentalised the

intricate connection between different interlinking elements of the whole experience
of human life. Indian law principles were in opposition to the classical positivist
theories of law. Indian law concepts thus fall firmly within the theoretical parameters
of the sociological school of jurisprudence, which treats legal rules as organically
grown and and socially tested normative orders and therefore does not accept the
domination of legal absolutism or positivist.

A deeper analysis of ancient Indian law yields a systemic, multifaceted truth inherent
in dharmic law, which never developed the aspiration to rule from above in absolutist
legal fashion but sought to rule from within the society and individuals. Legal
regulation from above, in the absolutist sense, may be apparently prominent, but there
are deeper levels of legal regulation which can be ignored only at great cost. Dharmic
law and its underlying philosophy does not simply accept the simplistic impression
that legal rules can solve all problems. In Indian cultural conceptualization, law is
eternally and intrinsically connected with other spheres and levels of life. (Menski,
p.42).

It was the influence of the Hindu view of life, as given in the dharmasastra, that
influenced the ruler and the ruled, and promoted their harmonious relations, and
facilitated for both the moderation of their actions in accordance with the common
ideals of coexistence. The best of all guarantees of good government in the
dharmasastra was in bringing up the king and his ministers in the same ideals as the
common man, and make both realize the supremacy of dharma as the both the letter
and the spirit of the human law. It is only when human life is seen in the perspective of
cosmic coexistence, and how important the self is as part of the cosmic reality and how
all existence is interconnected in the common process of creation and transformation,
that a proper sense of rules and values can be gained. The function and value of
dharmasastra is to show the path to this realisation. (Aiyangar, Aspects, p.180).

Dharmic law is alive and well at several conceptual levels of law, and it enables
modern India’s creative use of Indian concepts in seeking to construct a justice-
focused legal system that does not need the crutches of a foreign legal order, but
remains open to modification and reform as and when circumstances suggest it. Thus,
to argue that the ancient Indians did not have ‘law’ would be plain nonsense. If indeed
all human societies have law, why should ancient Indian societies be any different?
The simple answer is that the ancient Indians conceived of law differently from
Western cultures. Dharmic law, as is widely acknowledged, represents a culture-
specific form of natural law.

Both at the conceptual level and within processes of official law-making and policy
formulation, concepts and rules of dharmic law retain a powerful voice in how India,
in the 21st century, is seeking to achieve social and economic justice for over a billion
people. It holds its position as a major legal system of the world, often despised and
largely unrecognised, but massively present in the world of the twenty first century. At
least a billion people, roughly a seventh of the world citizenry, remain governed by
dharmic law in one form or another. Numerous decisions of the Supreme Court of
India and the High Courts and subordinate judiciary bear witness to this social reality.

State law and dharmic law are not incompatible, both interact with each other in many
ways that we cannot even begin to analyse. Indian traditions are manifestly much
more than folkloristic decorations, and dharmic law is a demanding multi-disciplinary
arena which seems to put researchers off. Dharmic law has always been much more
than a fossilised book law that could be abolished by the stroke of a pen. It could not
simply be reduced to redundancy in the Austinian fashion, that taught Indian
leadership to embrace legal positivism as a philosophy and top-down law-making as a
magic tool of development. Justice Katju has observed that in ancient and medieval
India there was tremendous development not only in the fields of science and
philosophy, but also in the field of law. However, he lamented that the advent of
British rule denied us the benefits of these developments as the alien rulers made it a
policy to demoralise and denigrate us by propagating the idea that Indians were a race
with no worthwhile achievement to their credit. (Katju, p. 7).

Force of Dharma

The foregoing brief discussion will make it clear that the rules contained in the
dharmasutras and other works on dharmasastra relating to danda or sengol as the
force of law had their roots deep down in the most ancient Vedic tradition and that the
authors of the dharmasutras were quite justified in looking up to the Vedas as a source
of dharma. But the Vedas do not profess to be formal treatises on dharma; they
contain only disconnected statements on the various aspects of dharma; we have to
turn to the smrtis for a formal and connected treatment of the topics of the
dharmasastra. Indian classical texts like the Manusmriti, and Sukraniti, which are in
the category of Nitisastra, Arthasastra, Dharmasastra, Tirukkural, or Dharmasutra
deal mainly with the specific topics implied by such Hindu categories as Dharma
(morals), Artha (interests) and Kama (desires and passions) as opposed to Moksa
(salvation).

Dharmasastra texts like Manusmriti, Yagyavalkayasmriti and Sukraniti reveal keen

insight into the principles of strong and good government and political wisdom that
find place in Indian texts of the time. These works are based on the principle that the
security of the state depends not on the passive virtue of obedience to the laws
promulgated by it but on the active cooperation of the people with it in carrying these
laws into effect. The structure and functioning of the Indian political system of these
times has many points which have anticipated the latest principles of good governance
administration and which have yet to be realised by modern States. (Sarkar, Sukraniti,
p. 39-40).

In these texts the existence of conflicts, disunions, rivalry and factional spirit is
considered to be the greatest of all dangers to social peace and political security. The
bond of civil society is torn asunder when the moral system is disrupted. Hence the
greatest political offender and the most criminal sinner is he who by his conduct
promotes the breach between those who should normally live in amity and peace. The
general violence of criminal activity in hindu jurisprudence is seen as the most
insidious threat to the order of law.

The main problem with violence is less the injury it causes to some person or group
than the threat it poses to the state or other legal authority. Sukraniti provides against
such offences by the socio-political decree issued by the king. (Sukraniti, p. 40).
“According to the dictates of Sukraniti the execution of bad men is real ahimsa i.e.,
mercy. One is deserted by good people and acquires sins by always not punishing
those ought to be punished, and punishing those who ought not to be, and by being a
severe punisher”. (ibid. p. 131).

A state is a state because it can coerce, restrain, compel. Eliminate control or the
coercive element from social life, and the state as an entity vanishes. Danda is the very
essence of statal relations. No danda, no state. A sanctionless state is a contradiction
in terms. The absence of danda is tanta-mount to matsya-nyaya or the state of nature.
It is clear also that property and dharma do not exist in that non-state. These entities
can have their roots only in the state. The whole theory thus consists of three
fundamental rules : no danda or sengol, no state; no state, no dharma; and no
dharma, no individuality and property. (Sarkar, Political Institutions, p. 197).

Manusmriti considers danda to be a tremendous force for discipline, hard to be

controlled by persons with undisciplined minds, it destroys the King who has swerved
from duty, along with his relatives. Then it will afflict his fortress and kingdom, the
world along with movable and immovable things, as also the sages and the gods
inhabiting the heavenly regions. Therefore punishment shall be given appropriately to
men who act unlawfully, after having carefully considered the time and place, as also
the strength and learning of the accused. When meted out properly after due
investigation, punishment makes all people disciplined and happy; but when meted
out without due investigation, it destroys all things. (Manusmriti, Vol.5, p.289-90)
Discipline cannot be justly administered by one whose mind is not disciplined, or who
is addicted to sensual objects, or who is demented, or who is avaricious, or whose
mind is not disciplined, or who is addicted to sensual objects. Discipline can be
administered by one who is pure, who is true to his word, who acts according to the
Law, who has good assistants and is wise. The King who metes out punishment in the
proper manner prospers in respect of his three aims of virtue, wealth, and pleasure; he
who is blinded by affection, unfair, or mean is destroyed by that same punishment.
(ibid. p. 292-93). In the same spirit, Tirukkular says that if the sengol of the king does
not rest on justice, and if he acts without wisdom, he will see his wealth and prestige
fade away. (Tirukullar, 57).
Having duly ascertained the motive and the time and place, and having taken into
consideration the condition of the accused and the nature of the offence, punishment
should be given to those deserving punishment.  Unjust punishment is destructive of
reputation among men and subversive of fame; in the other world also it leads to loss
of heaven; he shall therefore avoid it. The king, punishing those who do not deserve to
be punished, and not punishing those who deserve to be punished, attains great ill-
fame and goes to hell. (Manusmriti, p. 282).
In Sukraniti, punishment emphasizes rectitude and deterrence over retribution.
In fact, danda in this view is what makes law practical at all as it contains a
recognition of human imperfection and fallibility. Law in its fullest sense can only exist
in the world if danda is there to correct the inevitable failings of human beings.
Without danda, law remains an elusive ideal to which no one can aspire. With danda
law becomes satya, the truth that upholds social and individual righteousness. Danda
simultaneously guarantees the overall stability of the social system and development
of the individual. In Tirukkural, the value of the word of the priest, and the value of
the honour for men, is considered to rest on the value of the sengol held by the king.
(Tirukkural, 55).

Sukraniti sees danda as a two edged sword that cuts both ways. On the one hand it is a
corrective of social abuses, a moralizer purifier and civilizing agent. As the Sukraniti
says it is by the administration of danda that the State can be saved from a reversion to
matsyanyaya and utter annihilation and it is by danda the people are set on the right
path and they become virtuous and refrain from committing aggression or indulging
in untruths. Danda is efficacious moreover in causing the cruel to become mild and
the wicked to give up wickedness. It is good also for preceptors and can bring them to
their senses should they happen to be addicted to an extra dose of vanity or unmindful
of their own vocations. Finally it is the foundation of civic life, being the ‘great stay of
all virtues’ and all the ‘methods and means of statecraft’ would be fruitless without a
judicious exercise of danda. Its use as a beneficent agency in social life is therefore
unequivocally recommended by Sukra. (Sarkar, Basic Ideas, p. 513-14).

But on the other hand danda is also a most potent instrument of restrain the ruler
himself, to the powers that be. The maladmmistration of danda says Kamandaka
leads to the fall of the ruler. Manu ls does not hesitate to declare that danda would
smite the king who deviates from his duty from his ‘station in life’. It would smite his
relatives too together with his castles territories and possessions. The common weal
depends therefore on the proper exercise of the danda. Manu would not allow any ill
disciplined man to be the administrator of danda. The greatest amount of wisdom
accruing from the help of councillors and others is held to be the essential
precondition for the handling of this instrument. And here is available the logical
check on the eventual absolutism of the danda dhara in the Indian tradition. (ibid.).

In the two edged sword of the danda then we encounter on the one side interests of
the State and on the other individual morality, virtue, dharma, etc. In fact, it is to
‘educate’ man out of the primitive licence and beastly freedom that government has
been instituted. The State is designed to correct human vices or restrain them and
open out the avenues to a fuller and higher life. And all this is possible only because of
danda. The conception of this eternal co-relation in societal existence is one of the
profoundest contributions of the political philosophy of the Hindus to human thought.
This concept changes the emphasis from what law restrains to what law enables. It
suggests that every legal system must contain morals and ethical elements which can
be understood in religious terms. (ibid.).

“In accordance with the doctrine of danda, the state is conceived as a pedagogic
institution or moral laboratory, so to speak. It is an organization in and through which
men's natural vices are purged, and it thereby becomes an effective means to the
general uplifting of mankind. The Hindu theorists therefore consider the state to be an
institution " necessary " to the human race if man is not to grovel in the condition of
matsya-nyaya under the law of beasts. Man, if he is to be man, cannot do without
political organization. He must have a state and must submit to sanction, coercion and
punishment — in a word, to danda”. (Sarkar, Political Institutions, p.203).

In recent years social scientists have proposed a link between social cohesion, religion,
and punishment. Even in the smallest-scale societies, social scientists have argued,
participation in religious and cultural rituals strengthens group solidarity and
improves social harmony. Recently, researchers have begun to put these cultural
speculations to the test through both systematic field studies and laboratory
experiments. Laboratory studies, for example, have shown that synchronous
movements, like dancing or marching, foster greater solidarity and more cooperation.
Consistent with the multilevel account above, both cultural and historical studies
reveal how social cohesion has driven the diffusion of effective rituals and devotions.
This suggests that deep in our evolutionary history, social cohesion was favoring social
norms and rituals that increased solidarity. (Henrich, p.230).

While group-bonding rituals initially evolved to make face-to-face communities

cooperative and cohesive, gradually these ritual transformed for the scaling up of
cooperation to larger imagined communities in which thousands of individuals
interact, exchange, and cooperate. To facilitate this degree of scaling up, researchers
have argued, cultural evolution, by anchoring on human species’ innate capacities to
entertain the existence of supernatural agents, led to the emergence of increasingly
powerful and morally concerned deities (or supernatural forces) who monitor and
punish non-cohesive or antisocial activities, such as murder, theft, or adultery
(Norenzayan et al. p.2).

Over time, faith and beliefs about these supernatural forces evolved further to increase
their effectiveness: Gods expanded their range of moral concerns (e.g., openness
toward strangers), ability to monitor norm violators (e.g., mind-reading abilities,
omniscience), and power to punish (e.g., controlling the afterlife). Here, consistent
with models of social norms based on punishment, gods were turned into super
punishers who could impose penalties in this life and the next. (Purzycki, p.1)

A key psychological test of this hypothesis is whether people who believe in more
powerful, moralizing gods are indeed more inclined to cooperate with others.
Researchers have shown that individuals from diverse cultures and traditions who
report stronger beliefs in more powerful moralizing gods are more fair-minded in
experiments with anonymous persons and more supportive of public goods. To
examine whether supernatural agents can indeed cause people to behave more
cooperatively, many studies have shown that when imbued with thoughts of god and
specifically thoughts of supernatural punishment, believers become more fair-minded,
cooperative, and honest with strangers. Together with historical and cross-cultural
data supporting the claim that gods became increasingly morally concerned, powerful,
and punishing over historical time, the psychological evidence suggests that certain
religions may have evolved culturally in ways that have altered people’s psychology
and thereby permitted the cohesiveness of societies. (Henrich, ibid.).

Conclusion

The doctrine of dharma in its entirety imparts to danda the character of an

instrument for the cohesion of society and advancement of culture. Dharma elevates
man out of superficial sensory perceptions by instituting legislation, adjudication, and
the enforcement of duties. The functions of hindu law are in keeping with the ideas
involved in the doctrine of dharma. Hindu law as a pedagogic or purgatorial or moral-
training institution is not merely an ownership-securing agency, but a dharma-
promoting community. And herein, the Indian knowledge tradition provides the
justification for considering the concept of danda and sengol as a symbol of devotion
to the cause of furtherance of the ‘highest good’ of man in a cohesive society.

Bibliography

1. Aiyangar, Rangaswami, Some Aspects of The Hindu View of Life, New Delhi:
Lifespan, 2018.
2. Arthasastra, Tr. R P Kangle, Delhi: Motilal Banarasidas, 2021.
3. Agarwal, V.S., The Thousand Syllabled Speech, Varanasi.:, Prithvi Prakashan,
1963.
4. Baxi, Upendra, Towards a sociology of Indian law. New Delhi: Satvahan, 1986.
5. Bhattacharjee, A.M., Indian law and the Constitution. 2nd ed. Calcutta:
Eastern Law House, 1994.
6. Chiba, Masaji, ed. Asian Indigenous Law. London: Routledge, 2009.
7. Capra, Fritjof, and Ugo Nattei, The Ecology of Law, Oakland: Collins, 2015.
8. Davis, Jr., Donald R. The Spirit of Indian Law. Cambridge: Cambridge
University Press, 2010.
9. Day, Terence P. The Conception of Punishment in Early Indian Literature.
Waterloo: Wilfred Laurier University Press, 1982.
10. Derrett, J. Duncan M. Religion, Law, and the State in India. London: Faber,
1968.
11. Dhavan, Rajeev, ‘Dharmasastra and modern Indian society: A preliminary
exploration’. Journal of the Indian Law Institute, pp.515-540, Vol.34, No.4
1992.
12. Gajendragadkar, P.B. ‘The historical background and theoretical basis of
Indian law’. In: AIR 1963, Journal section, pp.18-26.
13. Galanter, Marc, Law and society in modern India. Delhi et al.: Oxford
University Press, 1989.
14. Henrich, Joseph, et al. The Origin and Psychology of Cooperation, Annual
Review of Psychology, 2021. 72:207-40.
15. Jayaswal, K. P., Manu and Yagyavalkya. New Delhi: Cosmo, 2004.
16. Manusmṛti: with ‘Manubhāṣya’ of Medhātithi, Jha, Ganganath. 10 vols., 2nd
edn. Delhi: Motilal Banarsidass, 1999.
17. Jois, Rama, Legal and Constitutional History of India: Ancient Legal, Judicial
and Constitutional System. Gurugram: Universal Lexis Nexis, 2022.
18. Jois, Rama, Seeds of Modern Public Law in Ancient Indian Jurisprudence. 2nd
ed. Lucknow: Eastern Book Company, 2000.
19. Jois, Rama, Dharma : The Global Ethic, Bhartiya Vidya Bhawan, Bombay,
1996.
20.Jolly, Julius, Indian Law and Custom. Varanasi and Delhi: Bhartiya Publishing
House, 1975.
21. Kane, P. V. History of Dharmaśāstra. 5 vols. Poona: Bori, 1962–75.
22. Katju, Markandey, Ancient Indian Jurisprudence, Speech delivered on 27th
November, 2010 at Banaras Hindu University, Varanasi.
23. Larivière, Richard W. ‘Dharmaśāstra, custom, ‘real law’ and ‘apocryphal’
Smrtis’. In: Kőlver, Larivière, Richard W. (ed.) Studies in Dharmaśāstra.
Calcutta: Firma KLM, 1984.
24. Lingat, Robert. The Classical Law of India, Berkeley: University of California
Press, 1973.
25. Manusmriti, Ganganath Jha. New Delhi: MLBD. 2016
26. Menski, Werner. Hindu Law: Beyond Tradition and Modernity. Delhi: oxford
University Press, 2003.
27. Narang, Sudesh (ed.) Dharmasastra in contemporary times. Delhi: Nag
Publishers, 1988.
28.Nath, Kamleshwar, Glimpses of Ancient Indian Law, Bharatiya Manyaprad,
Vol.4, No.1, 2016, pp.37-50.
29. Norenzayan, Ara, et al. Supernatural norm enforcement, Journal of
Experimental Social Psychology , March 2019.
30.Nazeer, Justice Abdul, Decolonisation of the Indian Legal System, Speech
delivered in Hyderabad, 26 December 2021.
31. Olivelle, Patrick Dharmasutras: The Law codes of Apastamba, Gautama,
Baudhayana and Vasistha. Delhi et al.: Oxford University Press, 2000.
32. Purohit, S.K. Ancient Indian legal philosophy. Its relevance to contemporary
jurisprudential thought. New Delhi: Deep & Deep, 1994.
33. Purzycki, Benjamin, et al. Moralistic gods, supernatural punishment and the
expansion of human sociality, Nature, March 2019.
34. Radhakrishnan, Sarvepalli. Indian Philosophy, Vol. 1. Delhi: Oxford, 2019.
35. Rocher, Ludo. “Hindu Law and Religion: Where to Draw the Line?” in Malik
Ram Felicitation Volume, 1972.
36. Sarat A. and T. Kearns, eds. Law in Everyday Life, eds. Ann Arbor: University
of Michigan press, 1993.
37. Sarkar, Benoy Kumar, The Sukraniti (Tr.), 2nd ed., Munshiram Manoharlal,
New Delhi. 1975.
38.Sarkar, Benoy Kumar, The Positive Background of Hindu Sociology, Motilal
Banarasidass, Delhi. 1985.
39. Sarkar, Benoy Kumar, The Political Institutions and Theories of the Hindus, ,
Verlag, Leipzig. (1922)
40.Sarkar, Benoy Kumar. “Some Basic Ideas of Political thinking in Ancient
India”, in The Cultural History of India, Vol. 2, 509-529. 2016.
41. Sarkar, Benoy Kumar. “The Indian Theory of the State,” Political Science
Quarterly 36(1) (1921): 79–90.
42. Singh, Chhatrapati ,‘Dharmasastras and contemporary jurisprudence’.
Journal of the Indian Law Institute, pp.179-188, Vol.32 No.2, 1990.
43. Sivaramayya, B. ‘Dharmaśāstra and Contemporary Indian Law’. In Narang,
Sudesh (ed.): Dharmasastra in Contemporary Times. Delhi: Nag Publishers,
pp.67-76. 1988.
44.Tirukkural, Tr. Gopal Krishna Gandhi, New Delhi: Aleph Book, 2015.
____________________________________________________
This is a revised version of the paper presented at International Conference on Vedic Jurisprudence,
11-12 February 2023, Banaras Hindu University, Varanasi, INDIA.